Citation Nr: 0023500
Decision Date: 09/05/00 Archive Date: 09/08/00
DOCKET NO. 99-08 990 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to an increased evaluation for colon resection,
currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jason R. Davitian, Counsel
INTRODUCTION
The veteran served on active duty from March 1955 to December
1964
This case is before the Board of Veterans' Appeals (BVA or
Board) on appeal from an April 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Muskogee, Oklahoma (RO), which denied the benefit sought on
appeal.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran's resection of the colon results in ongoing
episodes of pain and associated symptomatology.
CONCLUSION OF LAW
The schedular criteria for a 30 percent evaluation for
resection of the colon have been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.113,
4.114, Diagnostic Code 7301 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran essentially contends that the RO was incorrect in
not granting the benefit sought on appeal. The veteran
maintains, in substance, that the current evaluation assigned
for her colon resection does not adequately reflect the
severity of that disability. Therefore, a favorable
determination has been requested.
As a preliminary matter, the Board finds that the veteran's
claim is plausible and thus well-grounded within the meaning
of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet.
App. 629 (1992) (a claim of entitlement to an increased
evaluation for a service-connected disability generally is a
well-grounded claim). The Board is satisfied that all
relevant evidence has been obtained with respect to these
claims and that no further assistance to the veteran is
required in order to comply with the duty to assist mandated
by statute. In this regard, the Board notes that VA
treatment records dated during the appeal period have been
obtained, a VA examination has been conducted, and the
veteran has been afforded an opportunity to provide personal
testimony.
In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v.
Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the
service medical records and all other evidence of record
pertaining to the history of the veteran's service-connected
disability. The Board has found nothing in the historical
record that would lead to a conclusion that the current
evidence of record is not adequate for rating purposes.
Moreover, the Board is of the opinion that this case presents
no evidentiary considerations that would warrant an
exposition of the remote clinical histories and findings
pertaining to the disability at issue.
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule) found in 38 C.F.R. Part 4 (1999). The Board
attempts to determine the extent to which the veteran's
service-connected disability adversely affects her ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994).
"Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating." 38 C.F.R. § 4.7.
Under the Rating Schedule, a 20 percent evaluation is
warranted for resection of the large intestine with moderate
symptoms. Resection of the large intestine with severe
symptoms, objectively supported by examination findings,
results in a 40 percent evaluation. A note provides that
when residual adhesions constitute the predominant
disability, the disability should evaluated under Diagnostic
Code 7301. Diagnostic Code 7329.
According to Diagnostic Code 7301, moderately severe
adhesions of the peritoneum, with partial obstruction
manifested by delayed motility of barium meal and less
frequent and less prolonged episodes of pain, warrants a 30
percent evaluation. Diagnostic Code 7301 (1999).
It is provided in 38 C.F.R. § 4.113 that there are diseases
of the digestive system, particularly within the abdomen
which, while differing in the site of pathology, produce a
common disability picture characterized in the main by
varying degrees of abdominal distress or pain, anemia and
disturbances in nutrition. Consequently, certain coexisting
diseases in this area, as indicated in the instruction under
the title "Diseases of the Digestive System," do not lend
themselves to distinct and separate disability evaluations
without violating the fundamental principle relating to
pyramiding as outlined in § 4.14.
It is provided under 38 C.F.R. § 4.114 that ratings under
diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and
7345 to 7348 inclusive will not be combined with each other.
A single evaluation will be assigned under the diagnostic
code which reflects the predominant disability picture, with
elevation to the next higher evaluation where the severity of
the overall disability warrants such elevation.
In assessing the degree of disability attributable to a
service-connected disorder, the disorder is viewed in
relation to its whole history. 38 C.F.R. §§ 4.1, 4.2;
Schafrath 1 Vet. App. 589. Historically, an April 1994
rating decision granted the veteran service connection for
colon resection. The evaluation was 20 percent, effective
October 1994, under Diagnostic Code 7329 for resection of the
large intestine.
Evidence submitted during the appeal period includes
treatment records dated from 1997 to 2000 that reflect
outpatient treatment, as well as colonoscopies in October
1997 and September 1999. These records provide impressions
or diagnoses of history of ulcerative colitis, ulcerative
colitis, history ulcerative proctitis, ulcerative proctitis,
mucosal changes consistent with ulcerative proctitis, and
internal hemorrhoids. In January 1998 the veteran reported
that she felt better than she had in a long time, and had
experienced no complaints since starting new medication. The
veteran was asymptomatic in March 1998, and in February 1999
she was asymptomatic and her ulcerative colitis was noted to
be well controlled. In August 1999 the veteran's ulcerative
proctitis was noted to be well controlled.
According to the report of a December 1997 VA examination,
the veteran had experienced recurrent intermittent rectal
bleeding following colon resection in 1964, and underwent
surgery about one year later to remove adhesions. About six
months prior to the current examination, the veteran had
profuse hematochezia for about six months routinely everyday,
possibly two or three times a day, with mucous and pus
changes in the stool and blood as well. A VA endoscopy
report dated in October 1997 confirmed ulcerative proctitis
and she was started on medicine and enemas with significant
relief of symptoms. She continued to have an occasional
episode of bleeding but the most recent had occurred several
weeks earlier. Results of physical examination were
provided, and the impression was ulcerative proctitis under
treatment at this time with significant improvement of
symptoms, recurrent intermittent symptoms over the years.
The report of a July 1998 examination by an Air Force
physician provides that the veteran reported much rectal
bleeding in March 1997. She was found to have ulcerative
colitis of the rectum and was given Cortenema enemas for
several weeks and placed on Sulfasalazine. Her symptoms
improved to the point that she was no longer having rectal
bleeding and only intermittent mild abdominal pain. The
enemas were discontinued and the veteran remained on
Sulfasalazine. Currently, the veteran complained of
intermittent pain low in the abdomen, not associated with
loose stools or rectal bleeding. The veteran believed that
this was secondary to her previous adhesions. She denied any
rectal bleeding, nausea or vomiting in quite some time. The
assessment was well controlled ulcerative colitis on the
current regime of Sulfasalazine. The veteran had mild
intermittent abdominal pain which did not require visits to a
physician, emergency room or hospitalization. She currently
had no rectal bleeding. The physician opined that the
veteran's abdominal discomfort was most likely secondary to
ulcerative colitis and that she most likely had continued
peritoneal adhesions which could cause discomfort. It did
not appear that she had experienced a recurrent intestinal
obstruction since the 1960's. The physician stated that the
veteran would continue on Sulfasalazine.
During a June 2000 hearing before the undersigned Board
member sitting in Muskogee, the veteran testified that she
was a registered nurse and had practiced for 40 years. She
said that she currently required continuing medication for
the residuals of her resection of the colon. She said that
she required regular medications to control her bleeding.
While pain and abdominal discomfort were less severe, they
did persist. She said that her current diagnosis was
ulcerative proctitis, which she first received three years
earlier. She said that her colon resection had long since
healed and that her ulcerative proctitis was a residual. She
said that a doctor had never expressed such an opinion and
that in fact the question had never arisen.
She described her symptoms on an average day as urgency for
bowel movements, abdominal pain, and some hemorrhoidal pain.
She denied diarrhea. She said that she had occasional
cramping, not everyday. She said that high stress could
result in flare-ups, with abdominal cramping and passing of
mucus and blood. She said that flare-ups could occur once or
twice a year, depending, but there was no average. She said
that stress caused her flare-ups and that otherwise her
symptoms were fairly well controlled by medication. She said
that passing mucus and blood also occurred when she had
inflammation of her hemorrhoids. She said that she had
chronic hemorrhoids problems that she felt were exacerbated
by her colon resection and ulcerative proctitis. She said
that she might have always had hemorrhoids but that they
definitely had been aggravated and had become more severe in
the last few years as her ulcerative proctitis had grown
worse.
The veteran stated that she had check-ups every 6 months, and
underwent a colonoscopy every year. She stated that VA
doctors encouraged a high fiber diet and that otherwise she
had no restriction in her diet. She also stated that she had
adhesions that were directly related to her original
resection surgery. She said that two years earlier a doctor
had felt that flare-ups with abdominal pain were due to
adhesions. She said that these adhesions resulted in a dull,
cramping type pain. Although it was not an everyday problem,
it was related to constipation.
Based on a thorough review of the record, the Board finds
that the medical evidence supports a 30 percent evaluation
for adhesions under Diagnostic Code 7301. The Board
recognizes that it can be argued that the veteran does not
have all the symptoms set forth for such an evaluation.
Regardless, the Board finds that she has a degree of
disability contemplated by the 30 percent evaluation for
moderately severe symptoms.
First, the Board notes that veterans are generally competent
to testify as to their observable symptoms. In this case, as
a registered nurse the veteran is also competent to provide
an opinion requiring medical knowledge, such as the severity
of a disability. Espiritu v. Derwinski, 2 Vet. App. 492
(1992).
In this regard, the veteran has provided consistent testimony
as to the abdominal pain she experiences. These subjective
complaints are supported by objective medical evidence: the
veteran requires continuing medications, and the July 1998
examination by an Air Force physician found that she most
likely had continued peritoneal adhesions which could cause
discomfort. While the physician opined that the veteran's
abdominal discomfort was most likely secondary to ulcerative
colitis, the Board finds that for evaluation purposes her
symptoms produce a common disability picture and cannot be
distinguished and separated. See 38 C.F.R. § 4.113. It is
the Board's opinion that, with her medical procedures,
medications, and symptomatology, she has a degree of
impairment that more nearly approximates the degree of
disability contemplated by a 30 percent rating under Code
7301. For this reason, a single 30 percent evaluation under
Diagnostic Code 7301 will be assigned to reflect the
veteran's predominant disability picture.
The Board has considered a 50 percent evaluation for severe
adhesions of the peritoneum but finds that the preponderance
of the evidence is against such an evaluation. The medical
evidence of record, as well as the veteran's own testimony,
is negative for indications of frequent and prolonged
episodes of severe colic distention, nausea or vomiting; or
severe peritonitis, ruptured appendix, or perforated ulcer.
Diagnostic Code 7301.
In light of the above, a 30 percent evaluation for colon
resection is warranted.
ORDER
A 30 percent evaluation for colon resection is granted,
subject to the applicable laws and regulations governing the
award of monetary benefits.
BRUCE KANNEE
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).